Ceglia v. Zuckerberg et al

Filing 253

REPLY to Response to Motion re 216 MOTION to Strike 212 Declaration and for Sanctions filed by Facebook, Inc., Mark Elliot Zuckerberg. (Snyder, Orin)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
-----------------------------------PAUL D. CEGLIA,
Plaintiff,
v.
MARK ELLIOT ZUCKERBERG and
FACEBOOK, INC.,
Defendants.
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Civil Action No. 1:10-cv-00569RJA

DEFENDANTS’ REPLY MEMORANDUM IN SUPPORT OF THEIR
MOTION TO STRIKE AND FOR SANCTIONS

Thomas H. Dupree, Jr.
GIBSON, DUNN & CRUTCHER LLP
1050 Connecticut Avenue, NW
Washington, DC 20036
[phone]
Terrance P. Flynn
HARRIS BEACH PLLC
726 Exchange Street
Suite 1000
Buffalo, NY 14210
[phone]
December 8, 2011

Orin Snyder
Alexander H. Southwell
GIBSON, DUNN & CRUTCHER LLP
200 Park Avenue, 47th Floor
New York, NY 10166-0193
[phone]

TABLE OF CONTENTS
Page
INTRODUCTION .......................................................................................................................... 1
ARGUMENT .................................................................................................................................. 2
CONCLUSION ............................................................................................................................... 7

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INTRODUCTION
Defendants’ motion to strike showed how Ceglia’s counsel Dean Boland willfully misled
the videographer Robert Gianadda and pressured him into signing a Boland-drafted declaration.
Boland procured the declaration to support the outrageous claim that Defendants are responsible
for Ceglia’s most recently discovered act of litigation fraud: the artificial “baking” of the
purported Work for Hire agreement to give the document an aged appearance. Boland’s
response — replete with willful and obvious falsehoods — only entrenches himself deeper in his
client’s fraud.
Boland’s scheme is now exposed. In an attempt to blame Defendants for Ceglia’s
“baking” of the Work for Hire document, Boland manipulated and took advantage of a neutral
third party, the videographer Robert Gianadda, through deceit and pressure tactics. When
Gianadda submitted a superseding declaration (Doc. No. 218) that revealed what Boland had
done, Boland chose to attack Gianadda’s integrity. We now attach a supplemental declaration
that Gianadda executed on December 6, 2011 to respond directly to the baseless allegations
Boland levies against him in Boland’s declaration — that the videographer, who has neither bias
nor motive to shade the truth, lied under oath about his conversations with Boland. See Boland
Decl. (Doc. No. 236). Gianadda’s new supplemental declaration, which is filed herewith, makes
clear that Boland’s declaration is untrue.
Ceglia and Boland’s modus operandi is to deceive and, when caught, to accuse
Defendants of the exact wrongful conduct in which Ceglia and Boland just engaged in. For
example, when caught red-handed destroying the USB drives and other critical electronic
evidence, they accuse Defendants of spoliation. When caught “baking” the purported contract,
they accuse Defendants of discoloring the document. And when caught pressuring the
videographer into signing a misleading declaration, they accuse Defendants of pressure tactics.
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Consistent with this approach, when Gianadda exposed Boland’s efforts to deceive him, Boland
whirls around and accuses the videographer of lying to the Court.
The overwhelming evidence of Ceglia’s litigation fraud — and the complete and total
absence of evidence supporting his accusations against Defendants — is what accounts for the
bizarre, Alice-in-Wonderland nature of Ceglia’s briefs. Ceglia’s approach is akin to the bank
robber, caught fleeing the bank with a gun in one hand and a bag of money in another, accusing
the arresting officer of having committed the crime.
ARGUMENT
1.

Boland’s own declaration confirms that he tricked Gianadda. Boland admits that

Gianadda “repeated several times” during their phone conversation that he did not want to sign
the Boland-drafted declaration until he had spoken with Defendants’ counsel Alexander
Southwell. Boland Decl. (Doc. No. 236) at ¶ 24. According to Boland, Gianadda said that he
was “concerned about sending [him]” an executed declaration before speaking with Southwell,
because Gianadda “didn’t want to be perceived as taking sides” in the dispute. Id. at ¶ 22.
Boland further admits that Gianadda specifically asked him to call Southwell before “go[ing] any
further.” Id. at ¶¶ 23-24.
Boland had a problem: He knew that if Gianadda spoke with Southwell, Gianadda would
immediately realize that Boland had drafted the declaration in a highly misleading way and
would refuse to sign it. So Boland needed to trick Gianadda into signing before Gianadda spoke
with Southwell. Boland himself explains how he did it: “I told [Gianadda] that I do not speak to
Mr. Southwell on the phone that much and that we regularly email each other, therefore, I
suggested he email us simultaneously to deliver the declaration to both of us, which he did.” Id.
at ¶ 26. Boland told Gianadda that simultaneously emailing a signed declaration would simply
be a “convenient way to start a dialogue” between two lawyers who preferred communicating by
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email, and this way Gianadda would no longer be “in the middle.” Gianadda Nov. 11, 2011
Superseding Decl. (Doc. No. 218) at ¶ 7; Gianadda Dec. 6, 2011 Supplemental Decl. at ¶ 4.
This was a deceptive tactic. Boland misled the nonlawyer Gianadda into thinking that
emailing the signed declaration simultaneously to both sides would be nothing more than a
preliminary step — a way to speed things along given Boland’s representation that he generally
did not speak with opposing counsel by phone — rather than the end of the process. Boland
admits that he never told Gianadda that he intended to file the signed declaration with the Court.
Boland Decl. (Doc. No. 236) at ¶ 38 (conceding he never mentioned “what might become” of the
declaration). Although Boland claims that he had “no intention of filing Mr. Gianadda’s
declaration with the court unless necessary in reply to what was then scheduled responses due by
Defendants,” id. at ¶ 39, this is an obvious untruth. Boland obtained the signed declaration at
8:46 p.m. the night of November 10 — and filed it with this Court the next morning.
Boland’s suggestion that it was Defendants — rather than Boland himself — who
improperly pressured Gianadda does not even rise to the level of gross speculation: it is
affirmatively contradicted under oath by the witness himself. See Gianadda Superseding Decl.
(Doc. No. 218) at ¶ 7 (“Mr. Boland pressured me to execute the declaration during our call but
did not explain why there was an immediate need that I execute it [that] night.”); Gianadda
Supplemental Decl. at ¶ 6 (“I did not feel any pressure from Mr. Southwell, Mr. Flynn or anyone
else to sign my Superseding Declaration.”).
Where Boland cannot evade the damning evidence of his own misconduct, he simply
accuses Gianadda of lying. See Boland Decl. (Doc. No. 236) at ¶¶ 30, 34. It was bad enough
that Boland procured the declaration by deceiving Gianadda; he has now gone even further by
attacking the veracity and integrity of Gianadda through a declaration that contains new
falsehoods. Compare, e.g., Boland Decl. (Doc. No. 236) at ¶ 24 (claiming Gianadda said he
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needed Southwell’s “permission” to provide the declaration) with Gianadda Supplemental Decl.
at ¶ 3 (“I never told Mr. Boland that I had to obtain Mr. Southwell’s permission or anyone’s
permission to provide a declaration.”); Boland Decl. (Doc. No. 236) at ¶ 34 (denying he told
Boland the declaration was a “convenient way to start a dialogue”) with Gianadda Supplemental
Decl. at ¶ 4 (attesting to Boland’s statement); Boland Decl. (Doc. No. 236) at ¶ 30 (claiming he
did not omit from the declaration any statements by Gianadda about the document’s coloration)
with Gianadda Supplemental Decl. at ¶ 5 (“I told Mr. Boland that the documents did not change
color” during the course of the examination by Defendants’ experts).
Finally, Boland’s insistence that his corruptly-procured declaration is “consistent” with
Gianadda’s superseding declaration, Doc. No. 235 at 8, is inexplicable and clearly wrong. The
corruptly-procured declaration was intended to create the false impression that Defendants’
experts discolored the contract. The superseding declaration explicitly states that the color of the
pages did not change over the course of Defendants’ experts’ examination. Gianadda
Superseding Decl. (Doc. No. 218) at ¶ 4; see also Gianadda Supplemental Decl. at ¶ 5.
Similarly, Boland’s suggestion that Gianadda’s superseding declaration merely “expands on his
first declaration,” id. at 4, is an obvious falsehood. The superseding declaration includes
Gianadda’s critical statement that Boland willfully omitted — a statement that establishes the
precise opposite of what Boland drafted the declaration to suggest.
2.

Boland’s attempt to defend the merits of his corruptly-procured declaration fails.

Boland obtained the declaration to support his absurd claim that it was not Ceglia and those
working in concert with him who baked the Work for Hire agreement, but Defendants’ experts.
To this end, Boland took Gianadda’s observation that the pages appeared “white” rather than red
or blue — and carefully omitted Gianadda’s statement that the color of the pages did not change
over the course of Defendants’ experts’ examination — to create the false impression that it was
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Defendants who were responsible for the document’s current appearance. That strategy has now
self-destructed. Gianadda’s supplemental declaration reiterates that, contrary to Boland’s
assertions, he told Boland that the document did not change color over the course of Defendants’
experts’ examination.
Gianadda’s testimony is confirmed by the clear and incontrovertible physical evidence.
Defendants’ experts took images of the purported contract before they began their examination,
so as to memorialize how the document appeared at the moment Ceglia first made it available for
inspection. Those images indisputably show that the ink was already faded and the document
already had an off-white or ivory tinge when Mr. Argentieri removed it from his envelope.
Presented below is a comparison of how the document looked on two critical dates: on January
2011, when Ceglia presented it to some of his experts, and on July 14, 2011, seven minutes after
Argentieri removed it from the envelope, before Defendants’ experts began their examination:

1/13/11, 10:05 AM — Aginsky

1/13/11, 9:53 AM — Aginsky

7/14/11, 9:18 AM — Tytell

7/14/11, 9:22 AM — Tytell

Defendants have also submitted declarations from their experts Peter Tytell, Gus
Lesnevich, and Gerald LaPorte attesting that the Work for Hire agreement was already
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discolored and the ink was already faded when it was first presented to them by Mr. Argentieri at
the offices of Harris Beach PLLC, prior to any testing. See Tytell Decl. at ¶ 19-23 (Doc. No.
238); Lesnevich Decl. at ¶ 10 (Doc. No. 239); LaPorte Decl. at ¶ 8-9 (Doc. No. 240). Ceglia’s
suggestion that the video of the inspection supports his claim can be swiftly rejected. The lowresolution video simply cannot capture the faded ink. Indeed, at certain points on the video as
the light in the room hits the document in a certain way, the document becomes so “white” that
the text actually disappears. Nor is the video capable of capturing precise shades of color, such
as the difference between a “white” document and a “white” document with a yellowish or offwhite tinge. Colors on this type of low-resolution video can vary significantly depending on
whether the room is illuminated with natural or artificial light, the white/dark balance on the
camera, changes in camera focus and aperture, and a host of other factors. See Tytell Decl. (Doc.
No. 238) at ¶ 34. In contrast, the images taken of the alleged contract minutes after Mr.
Argentieri removed it from his envelope are clear — and leave no doubt that it was Ceglia and
those working in concert with him, and not Defendants, who tampered with this evidence.

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CONCLUSION
This Court should impose sanctions on Dean Boland and strike the Boland-drafted
declaration (Doc. No. 212) from the record.

Dated:

New York, New York
December 8, 2011
Respectfully submitted,
/s/ Orin Snyder
Orin Snyder
Alexander H. Southwell
Matthew J. Benjamin
Amanda M. Aycock
GIBSON, DUNN & CRUTCHER LLP
200 Park Avenue, 47th Floor
New York, NY 10166-0193
[phone]

Thomas H. Dupree, Jr.
GIBSON, DUNN & CRUTCHER LLP
1050 Connecticut Avenue, NW
Washington, DC 20036
[phone]
Terrance P. Flynn
HARRIS BEACH PLLC
726 Exchange Street
Suite 1000
Buffalo, NY 14210
[phone]

Attorneys for Defendants Mark Zuckerberg and Facebook, Inc.

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